Case Summaries

Tan Eng Hong v Attorney-General

SUPREME COURT SINGAPORE

21 August 2012

Media Summary

Tan Eng Hong v Attorney-GeneralCivil Appeal No. 50 of 2011

Decision of the Court of Appeal (delivered by V K Rajah JA)

Facts

(1) On 9 March 2010, Tan Eng Hong (“Tan”) and another male person (“the co-accused”) were arrested for engaging in oral sex in a cubicle in a public toilet of a shopping complex. Both parties are adult males in their forties. Tan and the co-accused were then separately charged under s 377A of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”) with the commission of an act of gross indecency with another male person.

(2) On 24 September 2010, Tan brought an application (“the Application”) under O 15 r 16 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”) to ask the court to declare s 377A of the Penal Code (“s 377A”) unconstitutional under the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) ( “the Constitution”). Tan alleged that s 377A was inconsistent with Arts 9, 12 and 14 of the Constitution (“Art 9”, “Art 12” and “Art 14” respectively) and was therefore void by virtue of Art 4 of the Constitution (“Art 4”).

(3) On 15 October 2010, the Prosecution informed Tan that the s 377A charge against him had been substituted with one under s 294(a) of the Penal Code (“s 294(a)”) for the commission of an obscene act in a public place. The charge against the co-accused was similarly substituted.

(4) Tan subsequently pleaded guilty to the substituted charge under s 294(a) on 15 December 2010, and was convicted and sentenced to a fine of $3,000. The co-accused had earlier pleaded guilty, and had similarly been convicted and sentenced to a fine of $3,000.

(5) Soon after the substitution of the s 377A charge against Tan with the s 294(a) charge, the Attorney-General (“the AG”) applied to strike out the Application pursuant to O 18 r 19 of the Rules and/or the inherent jurisdiction of the court. An assistant registrar (“the AR”) struck out the Application on the ground that it disclosed no reasonable cause of action, was frivolous or vexatious and/or was an abuse of the process of the court.

(6) On appeal by Tan against the AR’s decision, the High Court judge (“the Judge”) held that an had locus standi, and that his claim was not certain to fail and in fact raised many novel constitutional issues that deserved more detailed treatment. However, the Judge concluded that there was no real controversy to be adjudicated as there was nothing at stake for Tan, given that he had already pleaded guilty to and been convicted of the s 294(a) charge. The AR’s striking-out order was therefore upheld. The present appeal is Tan’s appeal against the Judge’s decision.